I spent a lot of time watching the hearing. Bork approached the Committee in his role as a Professor of the Law and was not unwilling to engage in a highly theoretical discussion and provided very candid views of where he stood on the various issues like original intent, which, since it is based on historical interpretation and all the complexity involved in the relative weight of the evidences that history itself provides, turns out to be a sort of quicksand. A quicksand- a moving target subject to the vagaries of time and circumstance- that the authors of the Constitution themselves had to deal with and were not able to resolve in an entirely satisfactory manner. So how could Bork presume to do so himself?
There is rarely an "absolute" answer to any of the really difficult questions which, especially in the atmosphere generated by party politics ( as the 'Founding Fathers' clearly recognized) and special- interest pressure groups using the instruments of mass media, quickly take on the aspect of " a can of worms". An additional difficulty was that Bork himself was not a particularly attractive person. Today, nominees try not to "lecture" Senators on Constitutional Law but every decision they end up making involves taking a stand on the questions raised by Bork in those hearings and many have views very similar to those he expressed at the time.
The above being the reason I would prefer a Judge ( and a President for that matter) who is broadly educated in the Humanities- History, Literature, Art- in which the formal study of the Law is a part- but not perhaps not the whole parcel. A Justice who has a personal sense of the pain, human misery- perpetrator and victim alike- of those who find themselves exposed to the necessity of bringing their problems and frustrations before a Court and the great difficulty of obtaining justice- blind and impartial- in such circumstances these or on any of the days in our brief lives on this planet. It ought to be remembered more often that, at the end, regardless of any degree of guilt or innocence, the final verdict for each and everyone of us is a capital one, and, at least as far as anyone really knows with scientific certainty, of the exact same character and duration.
http://johnshaplin.blogspot.com/2009/05/mystery-of-judicial-performance.html
ReplyDeleteThe Latin term for mercy, still used in French, is misericordia. The term signifies heartfeltness for actual misery and situation as part of an innate human sympathy for wretchedness where it is found. Here, at the very center of the controversy, is the mystery and the least understood aspect of judicial performance.
My judgement is that originalism is just a cover for a radical conservative agenda which seeks to roll back progressive rulings over the last several decades. Witness the recent weakening of the Miranda Ruling. Far from calling balls & strikes, Judge Roberts and his crew wish to impose a strong state and corporate interests to curtail individual liberty. We need judges with a liberal and humanities background, real life experiences, as opposed to corporate hacks like Roberts and Alito. Bork was poison. We should forever be grateful that he was run out of town.
ReplyDeleteUnfortunately it seems like meatheads are in charge of the nomination and confirmation process and the press is mostly shrilling: "this is the best of all possible worlds".
ReplyDeleteConservatives are the libertarians. Democrats have a near religious belief in the government's capacity to "run" the nation's economy. That's not what governments are for. Nor is it what laws are for. What the country needs to do is to restore classical liberal (libertarian) values -- individual choice and competitive diversity -- against the statism of the New Deal, which needs deconstructing. The New Deal created the government guarantee that set us up for the real estate mortgage debt bubble, with predictable nationwide results. The only possible corrections might have been competent government control and foresight in the form of rules about the construction of mortgage securitization packages, and strong enforcement of antitrust to create the (too often today missing) conditions of market integrity through competitive diversity. But from the 80s to today, in part because of brilliant legal critiques of bad antitrust doctrine of the 1960s, by Robert Bork and others of the Chicago School, the political climate has been one of unrestrained favor currying with the corporate world and no constraints on corporate size or compeitition or diversity. Tacit cartelization by "network" emulation. Corporations have sought security in large fiefdoms, in making themselves overlarge and overpowerful. But it is useless to merely, as the Left is wont to do, excoriate the corporate form itself, broad brush.
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